McDonald v. Missouri-Kansas-Texas R. Co.

• Decision Date: 14 March 1966
• Docket Number: MISSOURI-KANSAS-TEXAS,No. 2,No. 51262,51262,2
• Citation: McDonald v. Missouri-Kansas-Texas R. Co., 401 S.W.2d 465 (Mo. 1966)
• Parties: Carl Oliver McDONALD, Respondent, v.RAILROAD COMPANY, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 465

401 S.W.2d 465

Carl Oliver McDONALD, Respondent, v. MISSOURI-KANSAS-TEXAS RAILROAD COMPANY, a Corporation, Appellant.

No. 51262.

Supreme Court of Missouri, Division No. 2.

March 14, 1966.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 11, 1966.

Thomas R. McGinnis, St. Louis, Cullen Coil, Jefferson City, for respondent.

Fordyce, Mayne, Hartman, Renard & Stribling, Alphonso H. Voorhees, Eugene F. Jordan, St. Louis, for appellant.

PRITCHARD, Commissioner.

In this suit for personal injuries by respondent railroad employee against his employer tried to a jury under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., respondent has judgment, after a $10,000 remittitur ordered by the trial court, for $38,541.

Appellant, seeking reversal and a new trial, urges in its Point I error in the trial court's giving of respondent's requested Instruction No. 5 on the measure of damages, contending (A) that it referred generally to the 'occurrence shown in evidence' when the evidence clearly showed more than one occasion of injury, and that the instruction permitted damages to be awarded for either or both injuries; (B) that the medical testimony is conflicting and does not clearly support or authorize a finding that respondent's conditions set forth in the instruction resulted from or were caused by the accident of July, 1962, and same permitted the jury to speculate on such cause; and (C) that the instruction allowed the jury to consider and speculate as to loss of earnings, both past and future, when there was no clear evidence to support such consideration. By Point II appellant urges that the judgment is excessive.

The evidence did reveal that respondent had suffered a previous head injury to that alleged to be the result of the July, 1962, accident. Respondent testified that in the fall of 1958 he was hurt in the back of the head by being struck with some unknown object, rendering him unconscious. He went to a Fulton, Missouri, hospital for three or four days, and was under the care of a doctor. During the time he was in the hospital respondent had some draining from his ear, and had headaches at that time. He recovered from the injuries suffered in the mishap, and thereafter worked at cutting stove wood for sale, using a chain saw and hauling the wood to customers. He climbed and trimmed trees from 1958 on. He worked for one Preston McCall cutting and sawing logs, baling hay, driving cattle and hauling corn. After the fall of 1959 he slaughtered beef and hogs two days a week, that work being strenuous and heavy, for two winters to that seasonal work. He was able to do that work without difficulty. On other than the two days a week during that time, he helped several farmers, and helped tear down and load on a truck metal from a hopper 25 feet high. All of this time respondent worked regularly, and had no difficulty doing the work. Respondent's various employers during this time testified similarly that he was a dependable worker, doing heavy work, and that they had never heard him complain about any physical condition or inability to do the work, or of dizzy spells.

On February 18, 1961, respondent was examined for employment with appellant by Dr. T. C. Beckett, a doctor on its medical staff at Boonville, Missouri. A general examination was given, including: vision hearing, blood pressure, height, weight, color of eyes and hair, and the eyes, ears, nose and throat. Nothing abnormal was revealed about his health: his reflexes were normal, his hearing was normal in his right and left ear (twenty-twenty). From his examination respondent was in good health, and Dr. Beckett recommended him for employment as being capable of doing the strenuous work of the railroad.

On July 2, 1962, respondent and his foreman were engaged in fixing the brakes on the railroad motor car which had not been working well for several days. The foreman told respondent to get a tarpaulin and lay it between the rails, to lie on it, and the foreman would shove the motor car over him. This was done, and as they were working respondent heard the foreman say, 'Let the damn thing go.' Before respondent could get straightened around and lie prone again between the rails, the motor car was moving and he was hit on the side of the head by the grease housing on the axle, occasioning the injury for which he sued.

After being struck on the head, respondent lay on the track for two to four minutes, then got up and sat on the motor car for 15 or 20 minutes. He was dizzy and his head was numb. Later as the foreman and he continued their work at a point about 10 miles away, respondent noticed some whitish material streaked with pink which had come out of his ear which was very sore and he could hardly hear out of it. He took aspirin to take care of his headache and dizziness, and a ringing in his ear. After 4:00 p.m. respondent went home where he lay across the bed until about 9:00 p.m. He felt nauseated and vomited, and found blood on his pillow the next morning.

Respondent saw a Dr. Hill on July 5, 1962, who examined him, but did not treat him, and recommended that he see a company doctor. He then saw Dr. Beckett on July 6, who examined him and sent him to the hospital for X-rays. There respondent stayed for the rest of the week, during which time the doctor told him that his inner ear was damaged and that he had to give medicine through respondent's nose. Upon release, respondent's dizziness was not so bad except when he bent over. At the suggestion of his counsel, respondent saw Dr. Robert Lam of St. Louis, Missouri, in August, 1962. In September, 1962, he saw Dr. Beckett again and returned to work on the extra gang of the railroad until February 23, 1963, when he quit. During this time he still had dizziness, headaches and a 'buzzing' in his ear, all of which would be aggravated when he bent over. He also was bothered by nausea and vomiting, especially in the morning. Subsequent to quitting the railroad, up to July, 1964, respondent suffered four 'blackouts,' and testified that prior to July 2, 1962, he had never suffered such.

Dr. Lam testified that in his final diagnosis respondent had a traumatic concussion with the residuals of that manifested by postural dizziness, deafness in the left ear (25 to 30 per cent hearing loss), headaches, personality changes and a convulsive disorder manifested by akinetic seizures (a form of epilepsy)--a disturbance of consciousness, suddenly becoming unconscious, not knowing what he was doing, but without having a typical convulsion as a grand mal.

There was evidence from respondent's hospital record entered following his 1958 head injury (from being hit on the head by beer bottles and possibly a brick) that he was unconscious for the 24-mile ride to the hospital and for some time after his admittance. He had a fracture at the base of the skull, an absent abdominal reflex and an upswing toe reflex, and that he was bleeding from the left ear intermittently for two days. The significance of the loss of abdominal reflexes and the upswing toe reflex was testified to by Dr. Lam (respondent's medical expert) to 'mean that the trouble was on the right side of the brain' and a 'right-sided brain disturbance.' Dr. George E. Roulhac oppellant's medocal expert) testified that the upswing toe reflex is a definite sign of brain injury, and that he felt that respondent's convulsive disorder was more likely related to the 1958 injury, because of loss of consciousness for a lengthy period of time and the upswing toe reflex, than the 1962 injury, because it only dazed him and did not render him unconscious. There was thus an issue of whether respondent's condition at trial time was the result of two different injuries. However, under other evidence of causation, and considering respondent's testimony that he recovered from the 1958 injury, and all the instructions of the court, we are of the opinion that the jury could not have been misled as to which injury was referred to in Instruction No. 5 as being 'the direct result of the occurrence shown to you in evidence.' Respondent's main verdict-directing Instruction No. 2 referred to the second day of July, 1962, as the day when he was working on the motor car and that he then sustained injury to his person as a direct result of being struck by a portion of the underneath portion of the car. Instruction No. 3, given at appellant's request, told the jury in part that before it could return a verdict against appellant, 'You must further find and believe from the evidence that the condition of which plaintiff complains, resulted from an occurrence on July 2, 1962 and not from his injury of October of 1958.' Instructions to the jury must be read together, and when done so in this case, as above set forth, it is apparent that there was submitted no misleading, confusing issue, or puzzling situation (as contended by appellant), that would permit the jury to award damages for either or both injuries suffered by respondent in 1958 and 1962. See Perry v. Stockhoff Supply Company, Mo., 356 S.W.2d 92, 95 (1); Coit v. Bentz, Mo., 348 S.W.2d 941, 945 (6, 7); Faught v. Washam, Mo., 329 S.W.2d 588, 596 (10--12); Goodman v. Missouri Pacific Railroad Company, Mo., 312 S.W.2d 42, 48(6). Appellant's cited case of O'Leary v. Scullin Steel Co., 303 Mo. 363, 260 S.W. 55, on the issue of whether a removal of a portion of plaintiff's ulna was caused by a thumb injury or subsequent infection, is not in point because there no clarifying instruction was involved. Appellant's Point I(A) is overruled.

Under Point I(B) the contention is made that the medical testimony is conflicting and did not show causation of plaintiff's 1962 injury and his condition (of past and future pain and suffering, permanent injuries, etc.) as set forth in the damage Instruction No. 5. Appellant does not point out wherein, if so, respondent's medical evidence in itself is conflicting....